K C (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the Applicant's Subclass 500 (Student) Visa. The cancellation was based on the Applicant allegedly failing to maintain enrolment in a registered course at the same or a higher AQF level than the course for which the visa was granted, thereby breaching condition 8202 of the Migration Regulations 1994. The Applicant, represented by his Migration Agent, appeared before the Tribunal to present arguments.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was established. Specifically, the Tribunal had to determine if the Applicant had breached condition 8202 by not being enrolled in a full-time registered course that would lead to a qualification at the required AQF level. The Applicant's visa was initially granted for a package of courses including English, a Diploma of Business, and a Bachelor of Business.

The Tribunal found that the Applicant had completed the English and Diploma of Business courses. However, his enrolment in the Bachelor of Business course was cancelled by the education provider because they were unable to deliver the course, a fact the Applicant was unaware of at the time of receiving a notice of intention to cancel. The Tribunal accepted that this cancellation was beyond the Applicant's control and that he subsequently enrolled in new courses, including a Graduate Diploma of Management (Learning), which his representative argued was at a higher AQF level than the Bachelor of Business. Consequently, the Tribunal concluded that the stated ground for cancellation did not exist and set aside the decision to cancel the Applicant's visa.